Department of Child Safety v. Beene
235 Ariz. 300
| Ariz. Ct. App. | 2014Background
- Parents (Angel and Osanna B.) have two children; dependency/findings followed injuries to the younger child and criminal proceedings; dependency affirmed on appeal.
- DCS moved to terminate parental rights (severance) and sought a protective order preventing Parents from calling the children as trial witnesses, citing therapists’ opinions that testimony would harm the children.
- Parents opposed and asserted a due process right to call their children to confront and cross-examine them about hearsay statements admitted at trial; Father asked that children be present to testify or, if excluded, that the statements be barred.
- The superior court found DCS showed good cause under Rule 26(c) but denied the protective order, ruling Parents’ due process rights outweighed the State’s interests and prohibiting Parents from being present during children’s examination.
- DCS petitioned for special action review; the appellate court accepted jurisdiction, concluded that parents may have due process rights to challenge admitted hearsay but that the children’s best interests must be considered, vacated the superior court order, and remanded for further, fact-specific proceedings.
Issues
| Issue | Plaintiff's Argument (DCS) | Defendant's Argument (Parents) | Held |
|---|---|---|---|
| Whether parents have a due process right to call their children as witnesses to confront/cross-examine them about hearsay statements admitted at severance trial | Superior court may consider children’s best interests and can preclude testimony for good cause; protective order appropriate if testimony would harm children | Parents say they have an absolute due process right to have children testify and be cross-examined; no best-interests conditioning | Parents have a due process right to challenge hearsay, but whether that includes calling children as witnesses requires case-specific Mathews balancing that includes the children’s best interests; remand for further proceedings |
| Burden and procedure for deciding protective order | DCS must show good cause under Ariz. R. Civ. P. 26(c) and present an offer of proof describing the children’s statements to be admitted | Parents must then show denial of due process if children are excluded; court must weigh factors including child’s best interests | On remand, DCS bears burden to show good cause and make an offer of proof; if so, Parents must show denial of due process; court must consider alternatives to live testimony |
| Whether Arizona Confrontation Clause (Sixth Amendment) applies in severance proceedings | DCS: Confrontation Clause not applicable because severance is civil | Parents: (implicit) confrontation protections required for fairness | Court: Severance is civil; Sixth Amendment confrontation right does not apply; due process (Mathews) governs |
| Whether hearsay exception for child statements (Rule 45/E, A.R.S. § 8-237) eliminates need for cross-examination | DCS: Rule 45(E) admits child hearsay with indicia of reliability without cross-examination; cross-examination not always required | Parents: Without ability to call children, they cannot adequately test reliability | Court: Rule 45(E) shows cross-examination is not always required; parents can challenge reliability by other means; but whether exclusion denies due process depends on contextual balancing including risk of error and child’s best interests |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for what process is due by balancing private interest, risk of error, and government interest)
- Santosky v. Kramer, 455 U.S. 745 (1982) (parents’ fundamental liberty interest in care and custody of children)
- Wolff v. McDonnell, 418 U.S. 539 (1974) (confrontation and cross-examination are not universally required; procedures must consider risk of error and consequences)
- Maricopa County Juvenile Action No. JD-561, 131 Ariz. 25 (App. 1981) (applying Mathews factors in juvenile context)
- Ya-vapai County Juvenile Action No. J-9365, 157 Ariz. 497 (App. 1988) (affirming protective order excluding child witness where testimony would harm child)
- Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 148 (App. 1999) (burden on party claiming denial of due process)
- Cecilia A. v. Ariz. Dep’t of Econ. Sec., 229 Ariz. 286 (App. 2012) (severance proceedings are civil in nature)